[Cite as Antonyzyn v, Kelly, 2019-Ohio-2829.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
MICHAEL ANTONYZYN, ET AL., :
Plaintiffs-Appellees, :
No. 107838
v. :
KEVIN KELLY, ET AL., :
Defendants-Appellants. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 11, 2019
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-14-827623
Appearances:
Jeffrey L. Kocian, for appellee.
Malone Law, L.L.C., and John P. Malone, Jr., for
appellant.
LARRY A. JONES, SR., J.:
Defendant-appellant, Kevin Kelly (“Kelly”), appeals the trial court’s
denial of his motion for relief from judgment. Finding no merit to the appeal, we
affirm.
In 1998, Kelly and Nicholas Pyrtko (“Pyrtko”) entered into a land
contract agreement for a two-family house located on Castle Avenue in Cleveland’s
Tremont neighborhood. Kelly and Pyrtko resided in side-by-side units on the
property until Pyrtko died in 2010.
In 2013, Michael Antonyzyn (“Antonyzyn”) purchased one-half of the
real estate from Pyrtko’s estate. Antonyzyn subsequently filed a foreclosure
complaint in May 2014, alleging that Kelly owed $40,435 on his portion of the land
contract. Kelly did not file an answer or otherwise respond to the complaint.
In 2015, Anytonyzyn moved for summary judgment. The motion was
unopposed and granted by decision of a magistrate. The trial court adopted the
magistrate’s decision in January 2016.1
Twenty months later, in September 2017, Kelly filed a motion for
relief from judgment and for stay of execution and eviction, claiming he never
received the complaint and did not know about the lawsuit until he received an
eviction notice. The magistrate held a hearing and overruled Kelly’s motion. Kelly
filed objections to the magistrate’s decision. In October 2018, the trial court
overruled Kelly’s objections and adopted the magistrate’s findings. This appeal
followed.
Kelly assigns five errors for review:
1Antonyzyn bought Kelly’s portion of the property at sheriff’s sale for $38,000 in
April 2017.
I. The trial court erred when it denied appellant’s motion for relief
because the judgment was void for lack of jurisdiction and it was abuse
of discretion to find that plaintiff appellees had standing to commence
the lawsuit.
II. The Supreme Court’s holding in Kuchta2 does not apply in this case
and the motion for relief from judgment is not a substitute for an
appeal.
III. Plaintiffs did not perfect service of the complaint on appellant.
IV. There is no proof or finding that appellant’s rights under the terms
of the land contract were extinguished under Ohio Revised Code
section 5313.06.
V. The evidence submitted in support of summary judgment did not
comply with Civil Rule 56(e) and it was error to grant summary
judgment.
Motion for Relief from Judgment
Pursuant to Civ.R. 60(B), a trial court has the authority to vacate a
final judgment due to:
(1) mistake, inadvertence, surprise or excusable neglect; (2) newly
discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under Rule 59(B); (3) fraud
(whether heretofore denominated intrinsic or extrinsic),
misrepresentation or other misconduct of an adverse party; (4) the
judgment has been satisfied, released or discharged, or a prior
judgment upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the judgment should have
prospective application; or (5) any other reason justifying relief from
the judgment.
In order to prevail on a motion for relief from judgment under Civ.R.
60(B), the movant must demonstrate: (1) the party has a meritorious defense or
claim to present if relief is granted; (2) the party is entitled to relief under one of the
Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040.
2
grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a
reasonable time, and, where the grounds for relief are Civ.R. 60(B)(1), (2), or (3),
not more than one year after the judgment, order or proceeding was entered or
taken. GTE Automatic Elec. Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351
N.E.2d 113 (1976), paragraph two of the syllabus. If a movant fails to satisfy any one
of these requirements, the trial court should deny the motion. Rose Chevrolet, Inc.
v. Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988).
Service
We consider the third assignment of error first for ease of discussion.
In the third assignment of error, Kelly claims that Antonyzyn never perfected service
of the complaint.
Civ.R. 4(A) provides that “[u]pon the filing of the complaint the clerk
shall forthwith issue a summons for service upon each defendant listed in the
caption.” Under Civ.R. 4.1(A), service may be made by certified or express mail,
personal service, or residential service. “[S]ervice of process must be made in a
manner reasonably calculated to apprise interested parties of the action and to
afford them an opportunity to respond.” Chilcote v. Kugelman, 8th Dist. Cuyahoga
No. 98873, 2013-Ohio-1896, ¶ 23, citing Akron-Canton Regional Airport Auth. v.
Swinehart, 62 Ohio St.2d 403, 406, 406 N.E.2d 811 (1980), and Mullane v. Cent.
Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). In
this case, the court sent service of the complaint to Kelly at his Castle Avenue address
via certified mail.
The plaintiff bears the burden of obtaining proper service on a
defendant. Cincinnati Ins. Co. v. Emge, 124 Ohio App.3d 61, 63, 705 N.E.2d 408
(1st Dist.1997). “[W]here the plaintiff follows the Civil Rules governing service of
process, courts presume that service is proper unless the defendant rebuts this
presumption with sufficient evidence of non-service.” Carter-Jones Lumber Co. v.
Meyers, 2d Dist. Clark No. 2005 CA 97, 2006-Ohio-5380, ¶ 11. In order to rebut the
presumption of proper service, the other party must produce “evidentiary-quality”
information demonstrating that he or she did not receive service. McWilliams v.
Schumacher, 8th Dist. Cuyahoga Nos. 98188, 98288, 98390, and 98423, 2013-
Ohio-29, ¶ 49, citing Thompson v. Bayer, 5th Dist. Fairfield No. 2011-CA-00007,
2011-Ohio-5897, ¶ 23. The presumption of proper service may be rebutted by
evidence that the party did not reside, nor received mail, at the address to which
such certified mail service was addressed. Schumacher at id., citing Cent. Ohio
Sheet Metal, Inc. v. Walker, 10th Dist. Franklin No. 03AP-951, 2004-Ohio-2816, ¶
10.
Kelly contends that he never received service of the complaint;
therefore, the trial court erred in denying his Civ.R. 60(B) motion. At the hearing
on the motion, Kelly conceded that, at all relevant times, he lived at the address to
which service was sent. He also admitted that he had previously ignored other court
notices sent to his address. The certified mail return was signed “K.P. K.___.”3
3 The last name on the signature is illegible except for the first letter “K.”
Kelly testified that he lived in the duplex with an adult roommate; the court docket
indicates that the return was “signed by other.”
Kelly did not rebut the presumption of service by producing
evidentiary-quality information to demonstrate that he did not receive service of the
motion; Kelly’s only evidence was his self-serving testimony that he did not receive
the complaint. Therefore, we agree with the trial court that the magistrate did not
err in finding that service had been perfected.
The third assignment of error is overruled.
Standing
In the first and second assignments of error, Kelly argues that the trial
court erred in denying his motion for relief from judgment because Antonyzyn did
not have standing to sue. Specifically, Kelly claims that while Antonyzyn purchased
the Castle Avenue property, he did not purchase the land contract; therefore,
Antonyzyn had no standing to sue him for payment on that contract.
It is well-established that before an Ohio court can consider the
merits of a legal claim, the person seeking relief must establish standing to sue.
State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 469,
715 N.E.2d 1062 (1999), citing Ohio Contractors Assn. v. Bicking, 71 Ohio St.3d 318,
320, 643 N.E.2d 1088 (1994). “Lack of standing is an issue that is cognizable on
appeal, and therefore it cannot be used to collaterally attack a judgment in
foreclosure.” Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, at
paragraph two of the syllabus. Further, lack of standing does not affect the court’s
subject matter jurisdiction and cannot be raised to collaterally attack a judgment.
Id. at paragraph three of the syllabus.
The issue of standing could have been raised during the foreclosure
proceedings. Because it was not, res judicata prevents Kelly from using the issue to
establish entitlement to relief under Civ.R. 60(B). Id. at ¶ 15; see also
City Natl. Bank v. Gides, 11th Dist. Lake No. 2017-L-030, 2017-Ohio-7962, ¶ 21
(holding that appellant, who failed to raise the issue of appellee’s standing at the
trial-court level, was barred by res judicata from raising it on appeal.)
Kelly contends that Kuchta is distinguishable from this case because
in Kuchta, “the defendants appeared and were able to litigate the case.” Kelly claims
his situation differs because he was never served with the complaint and, therefore,
did not know about the lawsuit. As was explained in the third assignment of error,
Kelly was properly served; therefore, his argument is unpersuasive.
Kelly was able to raise the issue of Antonyzyn’s standing in the case;
he did not and did not file an appeal from the trial court’s judgment. It is well-
established that a Civ.R. 60(B) motion cannot be used as a substitute for an appeal
and that the doctrine of res judicata applies to such a motion. Kuchta at ¶ 16, citing
Harris v. Anderson, 109 Ohio St.3d 101, 2006-Ohio-1934, 846 N.E.2d 43; see also
Gides (holding that a party’s purported lack of standing cannot form the basis of a
Civ.R. 60(B)(5) motion):
Civ.R. 60(B) exists to resolve injustices that are so great that they
demand a departure from the strict constraints of res judicata.
However, the rule does not exist to allow a party to obtain relief from
his or her own choice to forgo an appeal from an adverse decision.
(Citations omitted.) Kuchta at id.
We find that Kelly’s claim is barred by res judicata and he is
prohibited from using a Civ.R. 60(B) motion as a substitute for appeal.
The first and second assignments of error are overruled.
Payments on Land Contract
In the fourth assignment of error, Kelly contends that the magistrate
erred because the magistrate did not consider that Kelly had paid off the land
contract. According to Kelly, his meritorious defense was that he paid the full
balance on the land contract. In support of this claim, Kelly submitted two checks
in the amount of $151.40 each. He also submitted a check register, purporting to
show payments he made on the land contract. The magistrate concluded that Kelly
had not presented sufficient evidence of a meritorious defense. The trial court
agreed, finding that Kelly’s “defense of payment,” was not sufficient to explain why
it was reasonable for Kelly to delay a year and a half after judgment to file a motion
for relief for judgment.
We agree. Even if the trial court considered Kelly’s claim that he had
made prior payments on the land contract, such consideration would not justify
Kelly waiting a year and a half after the court rendered judgment to file his Civ.R.
60(B) motion for relief from judgment. Moreover, Kelly has not shown that he was
entitled to relief pursuant to Civ.R. 60(B)(5) ─ he was unable to show that he paid
more than two payments on the contract.
The fourth assignment of error is overruled.
Summary Judgment
In the fifth assignment of error, Kelly contends that the trial court
erred in considering some of the evidence submitted in support of Antonyzyn’s
summary judgment motion and erred in granting the motion.
As previously stated, the proper course of action to object to the trial
court’s granting of summary judgment was via a direct appeal, which Kelly did not
file. Kelly’s stated reasons for not appealing the summary judgment have already
been addressed. Kelly cannot bootstrap his claims in a Civ.R. 60(B) motion when
he should have filed a direct appeal.
This court has consistently declined to “address assignments of error
from an order that was not the subject of a timely notice of appeal when
those arguments are raised as an otherwise timely appeal — an act we
call ‘bootstrapping.”’ “The reason why we prohibit bootstrapping in
cases like this is that a Civ.R. 60(B) motion for relief from judgment is
not a substitution for an appeal.”
(Citations omitted.) Bd. of Health v. Petro, 8th Dist. Cuyahoga No. 104882, 2017-
Ohio-1164, ¶ 12.
Accordingly, the fifth and final assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
EILEEN T. GALLAGHER, P.J., and
MARY J. BOYLE, J., CONCUR